Shafi ul Ibrar Vs Central Government through Secretary Defence

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

JUDICIAL DEPARTMENT

CR No.341-A of 2010

JUDGMENT

Date of hearing.....................16/10/2017................................................... Appellant...(Shafi-ul-Ibrar and others) by Mr. Shah Nawaz Iqbal, Advocate................................

Respondent...(Central Government through Secretary Defence Division and others) by Mr. Aurangzeb Mughal, Deputy Attorney General .......

SYED MUHAMMAD ATTIQUE SHAH, J:-

The instant revision petition has been filed by the petitioners against the judgment and decree dated 23.02.2010 passed by the learned District Judge, Mansehra , whereby, Appeal No.145/13 of 2009 of the respondents against the judgment and decree dated 04.11.2009 of the learned trial Court was accepted and suit of the petitioners was dismissed.

2.Brief facts leading to filing of present

revision petition are that the petitioners filed a suit against the respondents in the Court of learned Senior Civil Judge, Mansehra, for declaration, perpetual

injunction and possession against the respondents on 22.05.2001. The learned trial Court summoned the respondents who appeared and submitted their written statement. The learned trial Court after recording evidence of the parties, decreed the said suit vide its judgment and decree dated 04.11.2009. The respondents impugned the said judgment and decree before the Court of learned District Judge, Mansehra in Appeal No.145/13 of 2009,who after hearing the parties allowed the said appeal while setting aside the judgment and decree date 04.011.2009 of the learned trial Court and dismissed the suit of the respondents. Hence, the present revision petition.

3.Arguments of learned counsel for the parties heard and record of case perused with their able assistance.

4.Perusal of the record reveals that one Mst.

Mehr Afroz has alienated her property measuring 5 kanals 81⁄2 marlas in favour of the respondents vide mutation No.5197 attested on 15.12.1976 (Ex.PW 2/10).

Later, the petitioners instituted the present suit against the respondents on 23.05.2001 by challenging the validity of the said mutation on the ground of fraud and

misrepresentation. The petitioners in support of their case recorded statement of PW-1, PW-2 ‘Patwari Halqa’, who brought on record ‘Fard Jamabandi’ Ex.PW 1/1 for the year, 1980-81 and current ‘jamabandi’ for the year 2000-2001 (Ex.PW 2/2), copy of mutation No.4660 attested on 28.7.1974, mutation No.4863 attested on 26.6.1975, mutation No.5197 attested on 15.12.1976 and exhibited the same as Ex.PW 2/3 to Ex.PW 2/5.

Statement of PW-3 was also recorded, who produced attested copy of mutation No.5197 as Ex.PW 3/1 alongwith Ex.PW 3/2 and Ex.PW 3/3. Likewise, he also placed on record inheritance mutation No.9231 attested on 14.01.1993 of Mst. Mehr Afroz (Ex.PW 3/4).

Subsequently, statement of PW-4 was also recorded, who produced Ex.PW 4/1. Attorney of petitioner appeared and recorded his statement as PW-5. He brought on record his power of attorney as Ex.PW 5/1 and supported the contents of their plaint and prayed for decree in their favour. Later, the learned trial Court recorded statement of DW-1 SOK, who produced copy of the mutation No.5197 attested on 23.11.1976 and exhibited the same as Ex.DW 1/1. Statements of DW-2, DW-3 and DW-4 were also recorded. DW-6 produced copy of ‘Qabz-ul-

Wasool’ as Ex.DW 6/22 alongwith official record and exhibited the same as Ex.DW 6/1 to Ex.DW 6/25. Later statement of DW-7 was recorded who supported the stance of the respondents.

5.Perusal of record transpires that the impugned mutation (Ex.PW 2/10) was attested on 15.12.1976, however, Mst. Mehr Afroz in her lifetime had not challenged the validity of said mutation. It is also evident from record of the case that the said Mehr Afroz died in the year, 1993 and her inheritance mutation No.

9231 attested on 14.01.1993, copy Ex.PW 3/4, however, the present suit was filed on 23.05.2001. It is also worth mentioning that the impugned mutation was attested on the identification of her real brother, Babu Abdul Qayyum and one Dr. Muhammad Hussain Shah. It is also important to note that an amount of Rs.21,700/- was received by said Mst. Mehr Afroz vide Ex.DW 6/22 (Qabz-ul-Waool) and again she was identified by her real brother, Babu Abdul Qayyum and Dr. Muhammad Hussain Shah. Learned counsel vehemently urged that the burden of proof of Ex.PW 2/10 was on the respondent because Mst. Mehr Afroz was parda Nasheen and she never appeared before the revenue authorities for

attestation of the said mutation nor she had received any sale consideration. Granted, that burden of proof is on the shoulders of beneficiary of document, however, in the case in hand the respondents have successfully discharged the said burden by producing entire documentary record in respect of the impugned mutation (Ex.PW 2/10). Reliance is placed on case titled ‘Khan Muhammad Vs. Muhammad Din’ (2010 SCMR 1351).

Learned counsel referred to the statement of DW-7 and stated that he has admitted possession of the present petitioners. However, on the other hand, learned Deputy Attorney General referred to the statement of one Molvi Abdur Rauf and statement of one Muhammad Azeem available on record wherein, they have categorically admitted handing over the possession of disputed land to the Central Government. Thus, this Court is of the view that admission of DW-7 would come within the purview of ‘erroneous admission’ which is against the documentary evidence produced by DW-7 which is fully supporting the possession of respondents. Reliance is placed on case titled ‘Manager, State Bank of Pakistan Vs. Ch. Muhammad Ikram’ (1999 SCMR 2578). On one hand there are oral assertions of the petitioners

regarding the validity of the mutation in question, whereas, on the other hand, the respondents have produced sufficient documentary evidence in support of their claim that the property in question was properly transferred through Ex.PW 2/10 in favour of Central Government. Mst. Mehr Afroz who was duly identified by her real brother Babu Abdul Qayyum. They have also produced copy of ‘Qabz-ul-Wasool’ Ex.DW 6/22, wherein, Mst. Mehr Afroz has been shown received an amount of Rs.21,700/- again duly identified by one Dr.

Muhammad Hussain Shah and Babu Abdul Qayyum, her real brother. Apart from the above, the impugned mutation (Ex.PW 2/10) was attested on 15.12.1976 but neither Mehr Afroz nor her brothers had challenged the validity of impugned mutation in their lifetime.

Moreover, said Mehr Afroz died in 1993, whereas, the petitioner filed present suit on 23.05.2001, which was badly time barred. Reliance is placed on case titled ‘Jamila Khatoon and others Vs. Aish Muhammad and others’ (2011 SCMR 222). Moreover it is golden principle of law that he who alleges fraud, the burden is on that person to prove the alleged fraud. Reliance is placed on Khan Muhammad’s case (supra). Apart from

the above, learned counsel for the petitioners could not point out any misreading, non-reading of the evidence nor any illegality or material irregularity in the impugned findings of the learned Appeal Court.

6.Keeping in view the above stated facts, circumstances and discussion made thereupon, this Court reached at the conclusion that the petitioners have miserably failed to establish their case through cogent, reliable and confidence inspiring evidence. Hence, this Court is of the view that the findings of the learned Appeal Court are based on proper appreciation of evidence and material available on record of the case and law applicable thereto, which needs no interference by this Court in its Revisional jurisdiction under Section 115 C.P.C. Therefore, the present revision petition being bereft of merits is dismissed.

Announced:

Dt.16.10.2017. JUDGE

*/M.Saleem/*